Ramping Up Renewables: MOE’s Renewable Energy Approvals
In September 2009, the government put in place another key component of its strategy to shift electricity generation away from fossil fuels and toward renewables. To expedite the development of renewable energy generation facilities, the government proclaimed into force a new class of approvals for renewable energy projects under Part V.0.1 of the Environmental Protection Act (EPA). As well, O. Reg. 359/09 – Renewable Energy Approvals, made under the amended EPA came into force and established the new, streamlined process that must be followed in order to proceed with a renewable energy project.
The Renewable Energy Approvals Regulation (“REA Regulation”) constitutes the cornerstone of the province’s new approval process for facilities that generate electricity from renewable sources. The REA Regulation integrates all former MOE regulatory approval requirements into a single process which is based on a “one window, one permit” approach. In addition, the government has exempted most renewable energy projects that generate electricity from the requirements of the Environmental Assessment Act (EAA). As well, air and waste approvals under the EPA, along with permits to take water, well permits and sewage approvals under the Ontario Water Resources Act, are now combined in a single process and approval. Finally, through amendments made to the Planning Act, most planning approval requirements no longer apply to renewable energy projects. Collectively, these amendments constitute a fundamental change in the regulatory landscape for renewable energy electricity projects.
Based on the twin goals of stimulating the economy and improving the environment by reducing greenhouse gas emissions, the Green Energy and Green Economy Act, 2009 (GEGEA) was passed and received Royal Assent on May 14, 2009. Along with other legislative amendments, the GEGEA enacted the Green Energy Act, 2009 (GEA). For more information on the GEGEA, please see Powering the Future: The Green Energy and Green Economy Act, 2009 in this Annual Report. Along with enhancing energy conservation, the preamble of the GEA states the government’s commitment to “fostering the growth of renewable energy projects, which use cleaner sources of energy, and to removing barriers to and promoting opportunities for renewable energy projects…” To help achieve these objectives, the REA Regulation was developed to streamline the approvals process for renewable energy projects. Combined with the Feed-In Tariff program – which provides a financial incentive to develop renewable projects – the government hopes to affect a transformative shift away from fossil-fuel electricity generation and towards a greener energy path.
Prior to the REA Regulation coming into force, the process to gain the requisite approvals for a renewable energy project was often complex, expensive and time-consuming. Two key provincial hurdles existed. For most electricity projects, proponents were required to undergo an environmental screening process under the EAA, as well as to obtain a certificate of approval under the EPA. Projects were also subject to sometimes onerous official plan amendments and/or zoning bylaw amendments as required by municipalities.
The REA Regulation outlines both the process that must be followed to obtain an REA Approval from the Ministry of the Environment (MOE), as well as requirements (including the setback distances) that apply to specific technologies. The Ministry of Natural Resources (MNR) has jurisdiction over some aspects of environmental management (e.g., the protection of species at risk). To co-ordinate provincial efforts and avoid duplication, MNR developed an Approval and Permitting Requirements Document for Renewable Energy Projects that outlines its information requirements for decision-making on approvals or permits that fall under MNR administered statutes. For more information, please see MNR Approvals for Greening the Grid in this Annual Report.
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Overview of the Process
A brief overview of the REA process is provided below. For a more detailed description and review of the process, please refer to Section 4.11 of the Supplement to this Annual Report. MOE has also produced a plain language guide that provides a good overview of the approvals process.
Under the REA Regulation, renewable energy projects that use wind, bio-energy or solar are classified according to various criteria, including size and location. Depending upon their classification, some projects may be exempt from the regulation’s requirements.
The REA Regulation covers projects that generate electricity from wind, bio-energy or solar. It does not apply to certain renewable energy technologies, such as geothermal heating or cooling or solar thermal water or space heating, as these do not generate electricity. Some projects are exempt due to their size or because they are subject to an alternative approval process. Examples include:
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To proceed with most projects, applicants must provide notification of both their intention to engage in the project, as well as the location and time of at least two public consultation meetings. Notice of the first meeting must be provided at least 30 days in advance, published on two separate days in a local newspaper, posted on the applicant’s website and given to landowners within 120 metres of the proposed project location.
At least 60 days before the final public consultation meeting the applicant must make available to the public all documents and reports related to the project. These documents must be posted on the applicant’s website, and paper copies must also be made available for review.
For most REA approvals, applicants must submit several different reports. A core set of technical reports is required. As well, additional reports may be necessary depending upon the location, equipment or technology used.
All applicants (except the proponents of small wind projects) are also required to submit reports relating to possible impacts on natural features and water bodies located nearby the proposed site. Applicants must review public records, as well as conduct a site investigation, to determine the proximity of the proposed project to provincial parks, conservation reserves, natural features, or Areas of Natural and Scientific Interest. If the project is on Crown land (or private land where MNR permits are required), applicants must also assess the project’s proximity to wildlife habitat for fish, birds and beavers, as well as species and habitats protected under the Endangered Species Act, 2007 (ESA).
Once completed, the applicant must evaluate the significance or provincial significance of each feature using criteria established or accepted by MNR, and have MNR confirm the conclusions reached. Where there may be a potentially negative impact on any species or habitat protected under the ESA, the applicant will be required to describe the potential negative effects and the methods they propose to avoid or eliminate the effects. If there is no manner by which the effects can be avoided or eliminated (even after changes to the project have been considered), the applicant must apply for and be granted a permit from MNR in order to continue with the project.
Applications are submitted to MOE for review and, if deemed complete, an instrument proposal notice will be posted on the Environmental Registry for a minimum 30-day public review and comment period. After considering an application, MOE may issue, renew or amend an REA (with terms and conditions if deemed necessary), or refuse to issue, renew or amend, an REA. If dissatisfied with the decision an applicant may request a hearing by the Environmental Review Tribunal (ERT) within 15 days of the decision. Pursuant to GEGEA amendments, a third-party right to appeal now exists under the EPA. This is a new right. Any person within Ontario may, within 15 days of an REA decision notice being posted on the Environmental Registry, request a hearing before the ERT. There is a hurdle, however. In order to succeed at the hearing, the appellant must demonstrate that the project will cause “serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment.” If the ERT determines that the project will cause the alleged harm, it has the power to either revoke or alter the decision, or order MOE to take further action.
Requirements Relating to Specific Technologies
The REA Regulation establishes a classification for each type of renewable energy generation facility. The requirements relating to each technology, including whether an REA is necessary and the setback distances for noise, property lines, roads and railways, are determined according to the classification given to each individual project.
Wind
Five wind facility classes exist based on a project’s electrical power output (kW or MW) and turbine sound power level (“loudness”). Very small wind power projects (3 kW and under) do not require an REA, whereas an REA is required for any project over this size. Larger wind projects may or may not be subject to a 550 metre noise setback from the nearest receptor (i.e., residence) depending on their loudness. Where there are multiple turbines, the required distances are greater, but these can be reduced where ambient noise levels are below a certain threshold.
Solar
The REA Regulation establishes three solar facility classes based on a project’s electrical power output and location. Small facilities (10 kW and under) and those that are roof or wall mounted (of any size) do not require an REA. Ground mounted solar projects over 10 kW (which would provide sufficient power for 5 to 10 mid-sized homes) require an approval.
Anaerobic digestion facilities
Anaerobic digestion refers to the process whereby bacteria converts organic matter into methane gas which is then burned to generate electricity. Three anaerobic digestion facility classes are established based on the location and size of the facility, as well as the feedstock material (biomass, farm material, or source separated organics) being used. An REA is required for each class of facility, but the applicability of some requirements (including certain public consultation provisions and the reports required) will depend upon the class of facility being considered. In general, the requirements are less stringent when the facility is farm-based.
Thermal treatment facilities
Thermal treatment refers to the burning of wood or other solid organic material. Three categories exist depending on the location and size of the facility, as well as the feedstock (wood waste or other biomass) material being used. An REA is required for each of these three classes, but the applicability of some requirements (including certain public consultation provisions and the reports required) will depend upon the class of facility being considered. In general, the requirements are less stringent when the facility is farm-based. Similar to anaerobic facilities, a 250 metre setback distance is required from any building used by humans, but may be reduced for farm-based operations.
Setback Requirements for Natural Features and Water
The REA Regulation also establishes a number of setback distances for renewable energy projects from natural features and water bodies (such as lakes, streams and springs). In general, the minimum setback distance for water bodies or natural features identified as significant or provincially significant is 120 metres. In many instances, however, projects may be constructed within the 120-metre limit if an Environmental Impact Study Report outlines measures that will be taken to mitigate any negative environmental effects.
Renewable energy projects are not permitted within southern or coastal wetlands that are designated as provincially significant. As well, such projects are not permitted within provincial parks or conservation reserves except in limited situations. For example, a project may be allowed if it is generating electricity for a community that is not connected to the grid or where the electricity is to be used by facilities within the park or conservation reserve as defined under the Provincial Parks and Conservation Reserves Act, 2006.
Provincial Policy Plan Areas
Where a project is proposed within an area covered by a provincial policy plan (such as the Oak Ridges Moraine Conservation Plan, the Greenbelt Plan or the Lake Simcoe Protection Plan), extra requirements exist regarding natural heritage and/or water protection. In general, these additional requirements relate to the applicable setbacks, which can be reduced if an Environmental Impact Study Report is prepared and confirmed. Where a project is proposed for the area covered by the Niagara Escarpment Plan and a development permit is required under the Niagara Escarpment Planning and Development Act, such permit must be obtained prior to submitting the REA application. Accordingly, any proposal to develop a renewable energy project on the Niagara Escarpment must first be presented and approved by the Niagara Escarpment Commission.
ECO Comment
The REA Regulation represents a dramatic shift in how MOE processes and issues approvals for renewable energy projects. The ECO applauds the efforts of MOE and MNR to move the province away from fossil-fuel electricity generation and to facilitate the development of more environmentally benign sources of energy. This shift is a key step towards meeting the province’s climate change targets, as well as improving overall air quality. These efforts must be balanced, however, with the equally valid goals of protecting Ontario’s wildlife and natural environment. The success of this balancing act cannot yet be determined and depends in large part on how the REA Regulation is interpreted and applied. Some cautions are in order.
Neither the REA Regulation nor the plain language guide specifically state that cumulative impacts must be assessed; the absence of specific direction in this regard is disappointing. REAs are prescribed instruments, however, and the Divisional Court of Ontario ruled in June 2008 that all ministries, including MOE, are required to consider their Statement of Environmental Values (SEV) when making instrument decisions. MOE’s SEV states that the ministry considers cumulative effects on the environment, along with the interdependence of air, land, water and living organisms in its decision-making process. Accordingly, the ECO anticipates that MOE will give full and due consideration to cumulative effects when rendering decisions on renewable energy projects.
The ECO agrees with the relatively narrow and stringent test that has been established for third-party appeals. By limiting appeals to serious harm to human health, or serious and irreversible harm to the environment, it is apparent that the ERT will not be able to consider aesthetic considerations (such as the protection of viewscapes) and impacts on property values. Very few cases will likely meet the established threshold for appeal. In the ECO’s opinion, a stringent test is needed to help facilitate the development of renewable energy in the province.
The ECO is somewhat concerned, however, with the short period of time that is afforded third parties under the EPA to request a hearing before the ERT. The issue of a 15-day time period was raised in an application for review that was made to MOE. For more information, please see Not Enough Time: Challenging the Appeal Period under the EBR in this Annual Report. While that application focused on the leave to appeal provisions of the EBR, the principles that it raises, and the concerns that the ECO expressed, are equally valid with regard to the short time frame provided for REA third-party appeals.
Finally, although the new applications process has been streamlined, the ECO believes that it places a sufficiently high burden on project proponents to be thorough and transparent throughout the application process. Proponents will be required to expend a significant amount of upfront effort in public, municipal and Aboriginal consultations, along with the preparation of site-specific studies and required documentation. A key component of such transparency will be granting the public and local municipalities adequate opportunities – early and throughout the process – to view and comment on all relevant reports, as well as the final application. It is only in this manner that the local public is able to provide informed comments and gain a better understanding of what is being proposed. The ECO urges MOE to be vigilant in ensuring that project proponents provide sufficient opportunity and transparency to allow for meaningful engagement and input. If meaningful engagement of local communities is thwarted, it may result in the intensification, rather than the resolution, of social conflict.
Overall, the ECO feels that the approvals process outlined in the REA Regulation strikes a fair balance between the desirable goal of expediting the production of renewable energy in the province and the equally important objective of protecting our natural environment. Ultimately, time alone will reveal whether or not an appropriate balance has been struck. The ECO will monitor the implementation of the REA Regulation, along with the approvals process, with a view to ensuring that each of these objectives are ultimately achieved.
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| This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2010. "Ramping Up Renewables: MOE’s Renewable Energy Approvals." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. 16-21.
